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Labor Laws Employment Contract
When people call me about employment issues they don't realize one
important law- in almost every state you are terminable at will.
That means that your employer can fire you anytime and for no
reason at all. The only way you are protected from being fired on
the spot without notice is if you have a contract of employment. A
contract of employment must be in writing and should specify your
length of employment, salary, terms of employment, vacation, bonus
calculations, the basis of termination and any warnings to be given
(make it at least 3 warnings if you can) prior to termination and
must be signed by your employer, among other things.
Now, most people never get employment contracts because their
employers do not want to lose the right to terminate you with or
without cause. But there is a saving grace--if your employer wrote
an intial offer of employment letter and you commenced employment
based on that letter, you can use the terms in that letter as your
contract of employment. Hopefully the letter spells out your salary
and length of employment because there are cases where if your
fired before the end of the term in that letter than you can be due
the balance of your salary for that term. So, if your salary was
$40,000 for the year and the offer of employment letter states your
term is 1 year then if your fired in the first 2 months, your due
the balance of 10 months salary. And if your employer has an
Employee Handbook with rules and regulations therein (usually terms
of termination, warnings, vacation pay) then that Handbook is also
a binding "contract" of employment. Read the terms of your Handbook
because it may spell out how and when you can be terminated which
may or may not be good for you depending on whether or not it
limits the employer's liability for terminating you. On the other
hand, if the Handbook has terms regarding certain pre-warning
procedures before terminating you and those procedures were not
followed , then you can enforce those procedures as terms of your
contract. If your employer breached those terms he most likely must
re-instate your employment and follow those procedures before
terminating you.
The most important part of your employment is getting paid, so if
your employer fires you and refuses to pay you what you understand
to be due you, then use your Offer Letter and the Employee Handbook
as your "contract" of employment. The employer must follow any
terms in those documents. There are also labor laws in each state
that require payment for overtime, limited hours of work for
certain jobs and notice of your termination date and your health
insurance termination dates and proper notice is required as to how
to extend your health benefits ("COBRA"). Also, law specify that an
employer must pay you at least every two weeks, so if your fired
and the employer doesn't send your last check to you on time an
dholds it back-he violated labor laws and can be held liable to you
for extra money you pay to recover your wages.
For instance, in New York the Labor Law mandates proper notice of
employee termination and benefits termination. An employer failing
to follow the Labor Laws is penalized under Labor Law 198, in
addition to ordinary costs lost by the employee he must pay a
reasonable sum for expenses which may be taxed as costs are allowed
by the court. Furthermore, in any action instituted upon a wage
claim by an employee which the employee prevails, the court is
required to allow such employee reasonable attorneys' fees, Labor
Law 198(1-a), and upon finding that the employer's failure to pay
the wage specified by statute was willful, an additional amount as
liquidated damages equal to twenty-five percent of the total amount
of wages due is also paid to the employee. Labor Law 198(1-a). Case
law holds an award of liquidated damages to employees proper where
the employer knowingly, deliberately and voluntarily disregarded
its obligation under the Labor Law to pay the employees'
commissions, which would be deemed "willful" failure to pay wages.
P & L Group, Inc. v Garfinkel (1989, 2d Dept) 150 AD2d 663, 541
NYS2d 535.
So, don't despair if your employer gives you a hard time when your
fired--there are laws requiring him to pay your wages and your
Employee Handbook and Offer of Employment Letter also can be used
as valid contracts to support your position for wages.
This article is certainly not all inclusive and is intended only as
a brief explanation of the legal issue presented. Not all cases are
alike and it is strongly recommended that you consult an attorney
if you have any questions with respect to any legal matters.
Any questions and/or comments with respect to this topic or any other topic, contact:
www.appellate-brief.com
Law Offices of Susan Chana Lask
853 Broadway, Suite 1516
New York, NY 10003
(212) 358-5762
Susan Chana Lask, Esq. c 2004
About the Author
Susan Chana lask is a New york attorney named by the media as "High-Powered", she practice sin all state, appellate and federal Courts nationwide handling civil & crimnal cases.
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